Kumarathi v. The Secretary To The Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 29.04.2024 CORAM :

THE HONOURABLE MR. JUSTICE M.S. RAMESH AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN Kumarathi ... Petitioner / mother of the detenue Vs.

1.The Secretary to the Government, Home Prohibition and Excise Department, Secretariat, Chennai-600 009.

2.The District Collector and District Magistrate of Tiruvannamalai District, Tiruvannamalai.

3.The Superintendent of Police, Tiruvannamalai District, Tiruvannamalai.

4.The Superintendent of Prison, Central Prison, Vellore.

5.The Inspector of Police, Tiruvannamalai West Police Station, Tiruvannamalai District.

... Respondents

Prayer : Habeas Corpus Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Habeas Corpus, to call for the records in connection with the order of detention passed by the second respondent dated 29.12.2023 in D.O.No.109/2023-C2 against the petitioner's son Devanesan @ Deva, aged 25 years, S/o.Ravichandran, who is confined at Central Prison, Vellore and set aside the same and direct the respondents to produce the detenue before this Court and set him at liberty.

For Petitioner : Mr.D.Balaji For Respondents : Mr.E. Raj Thilak, Additional Public Prosecutor assisted by Mr.C. Aravind

ORDER

M.S.RAMESH , J.

and SUNDER MOHAN, J.

The petitioner herein is the mother of the detenue viz., Devanesan @ Deva, aged 25 years, S/o.Ravichandran, confined at Central Prison, Vellore, who has come forward with this petition challenging the detention order passed by the second respondent dated 29.12.2023 slapped on her son, branding him as "Goonda" under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law offenders,

Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 [Tamil Nadu Act 14 of 1982].

2. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the respondents.

3. Though several grounds are raised in the petition, the learned counsel for the petitioner pointed out that the Detaining Authority has not applied its mind while expressing its subjective satisfaction that the detenu is also likely to be released on bail. It is his submission that the facts of the case relied upon by the Detaining Authority is totally different and not similar to the present case.

4. On a perusal of the Booklet, this Court finds that facts of the case relied upon by the Detaining Authority in Crl.O.P.No.290 of 2014 dated 07.01.2024 is totally different and not similar to the case on hand as the learned Single Judge of this Court had stated that the deceased therein died due to 'hypo tension shock' in Paragraph 4 of the said order. Considering the nature of the bail order in the similar case relied upon by

the Detaining Authority and the case on hand, this Court finds that the subjective satisfaction of the Detaining Authority that the detenu is also likely to be released on bail, suffers from non-application of mind.

5. The Hon'ble Supreme Court, in the case of 'Rekha Vs. State of Tamil Nadu through Secretary to Government and Another' reported in '2011 [5] SCC 244', has dealt with a situation where the Detention Order is passed without an application of mind. In case, any of the reasons stated in the order of detention is non-existent or a material information is wrongly assumed, that will vitiate the Detention Order. When the subjective satisfaction was irrational or there was non-application of mind, the Hon'ble Supreme Court held that the order of detention is liable to be quashed. It is relevant to extract paragraphs 10 and 11 of the said judgment of the Hon'ble Supreme Court:- "10.In our opinion, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of the orders, the bail application number, whether the bail order was passed in respect of the co-accused in the same case, and whether the case of the coaccused was on the same footing as the case of the

petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail. However, the respondent authority should have given details about the alleged bail order in similar cases, which has not been done in the present case. A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored.

11.In our opinion, the detention order in question only contains ipse dixit regarding the alleged imminent possibility of the accused coming out on bail and there was no reliable material to this effect. Hence, the detention order in question cannot be sustained."

6. In view of the ratio laid down by the Hon'ble Supreme Court and in view of the aforesaid facts, this Court is of the view that the detention order is liable to be quashed.

7. Accordingly, the detention order passed by the second respondent in D.O.No.109/2023-C2, dated 29.12.2023, is hereby set aside and the Habeas Corpus Petition is allowed. The detenu viz., Devanesan @ Deva, aged 25 years, S/o.Ravichandran, confined at Central Prison, Vellore, is directed to be set at liberty forthwith unless he is required in connection with any other case. [M.S.R., J] [S.M., J] 29.04.2024 (2/2) Index: Yes/No Speaking/Non-speaking order Internet: Yes/No Anu To 1.The Secretary to the Government, Home Prohibition and Excise Department, Secretariat, Chennai-600 009.

2.The District Collector and District Magistrate of Tiruvannamalai District, Tiruvannamalai.

3.The Superintendent of Police, Tiruvannamalai District, Tiruvannamalai.

4.The Superintendent of Prison,

Central Prison, Vellore.

5.The Inspector of Police, Tiruvannamalai West Police Station, Tiruvannamalai District.

6.The Joint Secretary, Law and Order Department, Secretariat, Chennai.

7.The Public Prosecutor, High Court, Madras.

M.S.RAMESH , J.

and SUNDER MOHAN, J.

Anu 29.04.2024